Following some frosty responses to Microsoft's controversial patent deal with Novell last year, the software maker has begun a more aggressive attempt to persuade open-source software companies to license its know-how.

Microsoft could have several motives for rattling its patent saber: slowing down open-source rivals, raising fears of open-source legal risks among customers, and winning payment for technology the company believes it deserves from a group that's generally been unwilling to pony up.

But according to Horacio Gutierrez, vice president of intellectual property and licensing at Microsoft, the company's move is designed to bring parties to the negotiating table that currently aren't there. "There is nothing specific about open-source software that warrants an exception of the intellectual property laws that apply to everyone else," Gutierrez said. He called the purported patent infringements "not accidental."

Microsoft is a major player in the existing legal and business establishment for handling intellectual property, which includes assets such as patents, trademarks and copyrights. That framework gives considerable power to incumbent companies with large patent portfolios and sufficient resources to pursue more.

"It's a game in which those who have a lot of resources to throw around have a lot of advantage," said Tom Carey, a partner in the Boston-based intellectual property law firm Bromberg & Sunstein.

Raising the prospect of open-source patent risks might not be likely to make Red Hat, the top Linux seller, overcome its current unwillingness to pay Microsoft for patent rights. But it could pressure Red Hat and others indirectly, either through jittery customers or through big-business partners such as IBM. That's Microsoft's hope.

"We don't think that customers will want to continue on without a solution to the problem," Gutierrez said. Microsoft also pointed to the fact that AIG, Credit Suisse, HSBC, Nationwide and Wal-Mart all have bought the Linux Suse Linux coupons from Microsoft.

But does open-source infringe? The only problem with Microsoft's plan: so far its actions have only rallied the open-source troops, and not everyone believes the open-source gang egregiously violates the intellectual property regime.

"I don't think open-source is not playing by existing intellectual property rules," said Mark Radcliffe, an intellectual property attorney with DLA Piper. "Currently, open-source (participants) use copyright for everything they do. A lot of open-source companies have patents."

Radcliffe also derided Microsoft's reasoning that the purported open-source patent violations aren't accentual because the company thinks hundreds of cases exist. "It's an illusion or deceptive to say merely because there apparently are potentially a lot of patents infringed, it's intentional. That's certainly not the legal standard," he said. "I would also be willing to bet, given the number of patent suits against Microsoft that they've lost, under their own theory, Microsoft itself is intentionally infringing."

The fact remains, though, that patents and open-source software can be anathema. Patents give exclusive, proprietary rights to those who hold them, but open-source software is built on a philosophy of free technology sharing. Many in the open-source realm deride software patents and have been lobbying to curtail their influence.

When Novell and Microsoft announced their patent deal, the Free Software Foundation was quick to say it would move to prohibit such arrangements in a future version of the General Public License (GPL), the most widely used open-source license. The most recent draft seeks to prohibit all future deals of that nature and potentially past ones, too.

The timing of Microsoft's pronouncement is telling, Radcliffe said, "particularly when you think that GPL version 3 is still in draft. I don't think that is a coincidence," he said.

If just one corporation would be forced to use many patents against another, the world can see the stupidity behind the idea of thoughts and meta-ideas patenting.

They will never do it, because on the business, practival level they are one, patents-holding body. One strong spark can destroy everything, which is based on that homeostasis.

Why and what?

Now there is a cast of people (owners and lawyers) from corporations, that are rich enough to have ideas. Regular people without deep pockets are not allowed to have ideas. They must join them, sell them rights. This is gravity law of corrupted business economy. Why? The corporations are too big for quick reactons on the hi-tech field, but the individuals, they can and they are flexible. So the corporations, fat boys of market, had the idea to own the ideas, not products. It's easy, they do not have to be concurrent. Only they should take care about is to blackmale inventors to slurp their ideas and realize them in their snaily processes of creating products. It's not worthy to any corporation to start a war. It means the loose for the whole cast, and no profits from virtual products called patents.

Microsoft true intention is to kill the open source movement. They were behind the SCO's scheme to sue IBM and Linux users. That effort is failing so they are now trying to create another FUD for the free software movement.

You do understand that many Linux distros are in direct competion to MS, right? For all their money, I really don't believe they are that powerful to kill open source. Still they are a business, trying to protect themselves. I doubt that MS would actually go to the courts to resolve the issue. If they did, so what? If open source is violating, then they are, if not then they are not. It is not worth hyperventalating. If it was found that open source were stealing, what would happen? Yes, some distros would be shut down. Some other industrious fellow would come up with a work around. MS is a company. They are doing what their shareholders would expect.

... You can't just "steal" what you want, and if the OpenSource movement wants to play in this field they have to abide by the law. So they either remove the infringing code/designs, pay the licensing fee or face the consequences. It's their choice.

Except for the fact that Microsoft has only asserted its the case that open source infringes.

"You can't just "steal" what you want, and if the OpenSource movement wants to play in this field they have to abide by the law."

There is no evidence they've broken the law only an unsupported allegation from a company with a history of Linux FUD. SCO to claimed Linux was infringing on their IP, and despite suing IBM have yet to show one line of infringing code. It was later revealed that Microsoft invested in SCO after they filed their lawsuit, presumably to help SCO.

"So they either remove the infringing code/designs, pay the licensing fee or face the consequences."

I suspect removing the code is exactly why Microsoft won't support their allegations. They know the second they show their hand open source developers will start to remove and redo potentially infringing code and that would hurt Microsoft's attempt to get license revenue from Linux. We don't even know if these patents are even valid. Not to long ago Microsoft tried to patent an XML technology almost identical to RSS, but withdrew the application after being criticized for trying to steal RSS.

Pfft! I'm willing to wager that MSFT violates at least twice that many IBM software patents, not counting those filed by Sony, Novell, Sun, etc etc...

In short, if MSFT does anything more than mouth off about supposed violations (which may or may not exist - until MSFT names 'em specifically, it's nothing but hot air), all hell will break loose.

I already know [i]why[/i] MSFT is making noises - Vista sales are nowhere near as high as they expected, OEM's are in open revolt against it, and Office 2k7 ain't exactly bringing home the bacon either. MSFT sees a future where the only direction for them is down. Because of this, they can only talk the talk and hope that FUD will save 'em.

Legally, if MSFT names 'em, they have to sue over 'em, else they lose any hope of being able to successfully defend against any infringements later on.

So quite succinctly, I say bring it on... let's name names and not pussyfoot around. IMHO, one of two (among many) outcomes are certain:

1) MSFT gets buried under counter-suits by nearly every other big player in the software realm, enough to make it crawl home with tail betwixt legs in an orgy of sudden free and public "cross-licensing" agreements (See also BSD v. AT&#38;T, c.1980's).

As anti-everything-not-Linux as you are, Penguinisto, I agree that the threats are largely just hot air. It could however work quite well to help band together the various factions in the Linux community so they stop fighting each other about which distribution is supreme and instead work towards a common goal.

Open Source is just too open to interpretation and even now has trouble being able to define what it is. How can a product be open source when it's being sold for a profit and copyrighted? That's not open source, that's private. We've seen it time and time again in the industry and hopefully something like this will make them wake up and realize that unless they quit fighting amongst themselves and quit being the geek fodder that they are, they will never be taken seriously or be a viable product offering.

As anti-everything-not-Linux as you are, Penguinisto, I agree that the threats are largely just hot air. It could however work quite well to help band together the various factions in the Linux community so they stop fighting each other about which distribution is supreme and instead work towards a common goal.

Open Source is just too open to interpretation and even now has trouble being able to define what it is. How can a product be open source when it's being sold for a profit and copyrighted? That's not open source, that's private. We've seen it time and time again in the industry and hopefully something like this will make them wake up and realize that unless they quit fighting amongst themselves and quit being the geek fodder that they are, they will never be taken seriously or be a viable product offering.

Just like everyone coming out the woods to jump on MS with a lawsuit, mostly rightfully so but lots of times just get a piece of the pie...which in turn hurts MS from a PR stand point.

Facts are facts....MS is making boat loads of cash whether you hate them of love them.

Compare MS at....

"For its fiscal third quarter ended March 31, the software giant reported net income of $4.9 billion, or 50 cents a share, on sales of $14.4 billion."

to Apple at....

"California?April 25, 2007?Apple® today announced financial results for its fiscal 2007 second quarter ended March 31, 2007. The Company posted revenue of $5.26 billion and net quarterly profit of $770 million, or $.87 per diluted share."

Both companies did well and grew but dam MS profit was almost as much as all of Apple sales...and MS does not sell hardware (for the most part compared to Apple).

The same report M$ is waving around to make their case accuses Microsoft of over 800 patent infringements. M$ has also announced intentions to apply for 3,000 patents this year,- thats up 200% from 3 years ago- in other words, they aren't worth the paper they are written on. Hope you M$ diehards are enjoying the thousands of new proprietary "features" in Vista- HA! Maybe if M$ patents all the security flaws, compatibility issues, and bloat in Vista that figure would be believable. Don't worry, even with all the slick lawyers and financial muscle they throw out there to stifle competition (heck, if you can't put out a good product, what else is one to do?) this is going nowhere- this is Ballmer's stupidest move yet, and the only thing it will accomplish is to further solidify the public and corporate hatred of M$. At this rate, M$ won't last another 10 years.

Suppose Ballmer decided that signing-on developers to MS's tools was pointless so decided to attack their pet-projects instead. Granted, those pet projects are gaining strong market share in data-centers and moving to desktops but, he should know, lawyers aren't the answer.

If anybody from MS actually reads this think logically: look at how ineffective the US Justice Dept was in keeping Microsoft at bay, and that was the government targeting one company. You're NOT the government -- you're one company many common people are wary of, and few sympathetic to -- and you're attacking the life-blood of your industry: the engineers you need to keep going.

Ballmer's over his head trying to run MS: they haven't been doing well since Gates turned over the corner-office. Not that he was a saint, but he was (and is) a very bright devil. Maybe it's time for a "merger" (read: sell-out) to Google?

Poor developers are not doing so good these days, since M$ keeps upping the barrier to entry. Entry level business customers do not want M$ either because of the cost. The bottom of the pyramid is looking shaky for these guys.

I coud not get past the article analysis, about <b><i>licensing Microsofts "know-how"</i></b>.<p>That statement alone is <b><i>so incredulous that it implodes the rational mind</i></b>. What they are doing in reality, is getting people to pay Microsoft for methods (which shoud only be able to be copyrighted in the first place), that Microsoft never developed in the first place.</p><p>Talk about a large, fat, greedy, evil pig of a company.</p>

seen a business that wasn't "greedy". That is the purpose of a business. They are doing what they are supposed to be doing. It is really not worth you getting your panties in a wad. If they are infringing, then they are. Someone would find a work around. If they aren't, then they aren't. Slow down on the caffine, please.

When Lotus and Wordperfect were suing other companies over software that they claimed infringed on their IPs.

There was a lot of Lotus 123 clones, and a lot of Wordperfect clones, and even some clones of Crosstalk a modem program. After years and a ton of money later, Lotus, Wordperfect, Crosstalk, etc lost their IP lawsuits. Then Microsoft saw that they could make Excel, a clone of Lotus 123, Word a clone of Wordperfect, and Windows a clone of the Macintosh System around 1983-1984 when Microsoft decided to start using ideas from other companies and apply for their own patents.

Even MS-DOS infringed on CP/M-86 and Unix in many ways, but Microsoft didn't care who owned the IP as long as IBM would buy the OS from them and they could license it to other companies.

Despite "In an interview with Fortune magazine published this week, Microsoft's top lawyer, Brad Smith, provided a stark tally of 235 Microsoft patents the company believes are violated by free and open-source software, though he stopped short of detailing any. Specifically, he alleged that the Linux kernel violates 42 Microsoft patents; its user interface and other design elements infringe 65; OpenOffice.org infringes 45; and other packages infringe another 83 Microsoft patents..." How many can truly say that, (taking any or all of these OSes together) by today's standard--any one of these can be the "end" all; and, the be "all" Operating System that a particular someone in the world may be looking for in an Operating System (they all can be considered as being work-in-progress). So; until then, why can't there be harmonious development among all the communities involved and let the world see some real progressive development in the computing industry rather that the apparent squabbling that appears to be ongoing over the years.

If Balmer want to play on a "level field" with open source software then he should have all MS source code publicly published like Gnu/Linux/Mozilla/OOO etc. are publicly available, so they can be checked for any patent or copyright infringement in them. Otherwise it's not a "level field".

If MS claims there are patent infringement they should point to the infringing code and say exactly what it infringes upon. There are hundreds of thousands of patents and the only way to identify infringement is if someone points exactly at it. Otherwise all code looks the same. The fact is that right now MS pointed at zero patents infringed upon by open source software. What MS does right now has a name: it's called "blackmail".

The "level playing field" Balmer is talking about is not one where players are playing by the rules (removing infringement if discovered) but one were players are not playing by the rules and the bigger bullies make deals to protect each other and collect protection fees from the smaller players that are trying to play by the rules. Clearly everyone can see that MS deals are not about playing by the rules (not infringing or removing infringement) but about avoiding punishment for not playing by the rules (infringing and not being sued).

And more on "playing on a level field" as per Balmer: the patent system is a system that grants a government franchise on thoughts. A patent means someone that has the money to spend can go register a thought with the US thought control office and then claim that anyone else is not allowed to think the same thought without first negotiating a license that allows this thinking by the "owner" of the thought. MS claims that OS developers has 235 thoughts that require a license from MS before thinking. The fact is that MS can buy from the US goverment much many franchises on thoughts and a volunteer open source developer cannot afford to pay the US government for such exclusive licenses on everything she thinks.

How is it that the article didn't mention the recent Supreme Court decision

That said patent law is too tight? The USSC did so in a ruling favoring software over bio-tech, and MS said that decision was appropriate. The odds are that most of the silly patents floating throughout the software industry aren't valid because they aren't innovations.

it will appear that it will be all up to the Microsoft Corporation to sue or not to sue for the infringement of its software patents according to U.S Laws. The thing is, in the U.S. people have freedom of choices and if the so-called Open Source model is not an option for some businesses around the world so be it. The big question is: Who likes to "work for free"! Also, if the Microsoft Corporation does not continue to produce "crapware" then perhaps the world could very see the workers of anti-virus companies like on the bread-lines. WOW!

... with Microsoft now agitating "for open-source patent pacts" (like the die-hard OS/2 community was petitioning for all along) what is it going to be now that the 800lb Gorilla (OS/2) which about to free itself and about to morph into GODZILLA! Run for your lives! Whoooaaahhhh......

99% of all patents have their information classified as business secrets. SCO pulled this method out of its hat when it attacked RedHat/Linux but failed due to the inconsistency of its patents and patents it had no claim to.

Bill Gates was smart-he knew when to quit. He left the greedy and litigationists behind.

Innovation now clearly comes from the open source community and Linux, and the power behind that will overwhelm MS.

But for the sake of discussing who might litigate whom, let's look at a list of what Microsoft "stole" from others:

Wordperfect -&gt; MS Word

Visicalc -&gt; Excel

Xerox and Apple -&gt; Windows

Unix -&gt; multitasking and user magagement

..

etc., the list goes on and on.

But here are the real mistakes that Microsoft has just made:

- It has indirectly admitted that Linux is viable and powerful

- It has irreversibly destroyed the perception of being "cool".

Why does that matter? Well, when MS started, it was the little man's tool agains "big blue" (IBM) and people jumped on the bandwagon. This underdog role now falls to Linux, thanks to MS's posturing. Plus, the best software developers usually want to work on the "coolest stuff" (programmer's lingo for cutting edge, popular) and MS now definitely looks like the "pouting second."

Ubuntu with Firefox, Openoffice, and Evolution meets the needs of most people.

Dell created a web site to get find out what users wanted most, and what did it turn out to be? Linux on Dell computers!

MS can't suppress what people want forever, and this latest move shows just how desperate they have become. I'm not impressed.

The whole Idea of IP patent's are wrong! Being there are only so many ways of doing something there should be no patents allowed. All this tends to do is stifle competition. No matter how you write a program your sure to violate someones IP. If nothing else these patents should be limited to the same as any other Manufactured product.

Be it business or nations, bullies - unchecked - will continue to push their senseless wars on everyone until they are finally destroyed, ... why? because they cannot and will not be controlled.The technological world needs to learn from history before undreamed destruction of data and processing is realized by those unwilling to acknowledge simple truths. Those who do not learn from history will end up repeating it. M$ has never relented in its unending quest to grasp and destroy its real or imagined "enemies". Beware, world; M$ will continue to plunder and threaten because they now know they are bigger than governments. Each day they grow more vile and ambitious, and each day users' ability to function without interruption or total attack is eroded.

My fir$t encounter with Vi$ta happened this Saturday in St. Joe, MO at an Office Max. The salesman started up a nice new notebook for me until I noticed the "Vista" label and informed him that I had no interest in that OS because of its radical, senseless attacks on those who try to buy and use it. He, sheepishly, agreed that he uses only XP at home, but that the store must sell (by force? - No doubt) Vi$ta.

Before our conversation got any further, Vi$ta had attacked the store demo and "offered" to reduce or shut down. I laughed, shook my head, waved my hands, ... and left.

M$ followers: you are being loyal to a tyrant who has no loyalty to you at all. They are out to buy or destroy everything in their sight - as before; except the new enemy is the users, or as M$ calls them: Pirates!

Thanks but no thanks. I'm bailing. I quit programming with the advent of DOS 6.x and am glad I did. Now I must seek something to do with my time and talents, but bowing to Gates/Balmer is not it.

would probably be better put to use with some crayons and a room with some padded walls. MS is a very good business, nothing more and nothing less. They are not a government. Also, I have no misconceptions that they will be "loyal" to me. They are "loyal" to me as long as I pay them money. I will continue to do business with them as long as they provide the product I require. If either of us cease this behavior, then the loyalty from either side ceases. This is known to both parties. Apparently, you have found something to do since the advent of DOS 6.x. Nice to have you back. Perhaps you can use your talents writing fictional literature.

Report offensive content:

If you believe this comment is offensive or violates the CNET's Site Terms of Use, you can report it below (this will not automatically remove the comment). Once reported, our staff will be notified and the comment will be reviewed.

E-mail this comment to a friend.

E-mail this to:

Note: Your e-mail address is used only to let the recipient know who sent the e-mail and in case of transmission error. Neither your address nor the recipients's address will be used for any other purpose.